IN THE SUPREME COURT OF THE STATE OF WASHINGTON

LEO MACIAS and PATRICIA MACIAS, )husband and wife, ) No. 85535-8

)Petitioners, )

)v. )

)SABERHAGEN HOLDINGS, INC., as )successor to TACOMA ASBESTOS )COMPANY and THE BROWER COMPANY; )AMERICAN OPTICAL CORPORATION; )AMETEK, INC.; MINE SAFETY )APPLIANCES COMPANY; NORTH )SAFETY PRODUCTS, USA, )

) En BancRespondents, )

)TODD PACIFIC SHIPYARDS )CORPORATION, individually and as )successor-in-interest to TODD SHIPYARDS )CORPORATION; TODD SHIPYARDS )CORPORATION, individually and as )successor-in-interest to TODD PACIFIC )SHIPYARDS CORPORATION; CBS )CORPORATION, a Delaware corporation, )f/k/a VIACOM, INC., successor by merger to )CBS CORPORATION, a Pennsylvania )corporation, f/k/a WESTINGHOUSE )ELECTRIC CORPORATION; GENERAL )ELECTRIC COMPANY; GOULDS PUMPS )(IPG), INC.; and INGERSOLL-RAND )COMPANY, )

)Defendants. ) Filed August 9, 2012

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_______________________________________)

MADSEN, C.J.—Plaintiff Leo Macias worked as a tool keeper in a shipyard and

his job required that he maintain respirators that other workers wore to filter out

dangerous contaminants. Mr. Macias and his wife Patricia Macias brought this suit

against the respirator manufacturers, alleging that cleaning and maintaining the respirators

exposed Mr. Macias to asbestos, causing him to develop mesothelioma. The plaintiffs

claim that the manufacturers owed a duty to warn Mr. Macias of the danger that he could

be exposed to harmful asbestos dust when he cleaned and maintained the respirators. The

respirator manufacturers moved for summary judgment on the ground that as a matter of

law under Simonetta v. Viad Corporation, 165 Wn.2d 341, 197 P.3d 127 (2008), and

Braaten v. Saberhagen Holdings, 165 Wn.2d 373, 198 P.3d 493 (2008), they owed no

duty to warn. The trial court denied the motion.

The Court of Appeals reversed, holding that under Simonetta and Braaten the

defendants did not owe a duty to warn because they did not manufacture the asbestos-

containing products that were the source of the asbestos to which Mr. Macias was

exposed. We reverse the Court of Appeals.

In Simonetta and Braaten we held that generally a manufacturer does not have a

duty to warn of the dangers inherent in a product that it does not manufacture, sell, or

supply. However, Simonetta and Braaten do not control the present case because the

duty at issue is to warn of the danger of asbestos exposure inherent in the use and

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maintenance of the defendant manufacturers’ own products, the respirators.

FACTS

From 1978 to 2004, Mr. Macias worked as a tool keeper at Todd Shipyards in

Seattle. His job was to supply shipyard workers with tools and equipment that they used

in their work at the shipyard, among which were respirators manufactured by defendants

American Optical Corporation, Mine Safety Appliances Company, and North America

Safety Products USA (hereafter manufacturers or respirator manufacturers).

When they completed their shifts, shipyard workers such as pipefitters and welders

returned the respirators to the tool room where Mr. Macias worked. These workers wore

the respirators to filter various contaminants from the air they breathed, including

asbestos, welding fumes, paint fumes, and dust. Different filter cartridges were used for

the different contaminants.

Mr. Macias’s duties included cleaning the respirators and replacing their filter

cartridges. When they were returned to him, he would throw the respirators, many of

which had a dusty film on them, into a nearby basket. Sometimes the respirators were

bounced off a nearby window, which caused “little poofs of dust.” I Clerk’s Papers (CP)

at 127. The same thing would occur when the basket was nearly full and another

respirator was thrown into it. When the basket was full, Macias would disassemble the

respirators, causing “dust, sand, dirt” to “just fly out.” Id. at 128. Macias threw away the

dirty filters and then scrubbed the respirators’ reusable parts with a nylon brush, rinsed

them in a sink, and stacked them in an oven to dry. Mr. Macias handled hundreds of used

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1 Mr. Macias died from the disease in June 2010, while this case was pending.

respirators during busy periods.

In May 2008, Mr. Macias was diagnosed with mesothelioma, a deadly type of

cancer associated with asbestos exposure.1 In June 2008, Mr. and Mrs. Macias filed this

personal injury suit against the manufacturers, asserting causes of action in negligence

and product liability. Mr. Macias maintained that he did not know he was at risk from

exposure to the asbestos dust coating the used respirators and filters and that he never

saw a warning to take precautions when handling and maintaining them such as wearing a

respirator himself or wetting the respirators before disassembling them. He testified that

if he had been warned he would have taken precautions. The plaintiffs presented

evidence that the respirator manufacturers knew that inhalation of asbestos was

potentially harmful to people and that the respirators would have to be routinely cleaned

and the filter cartridges replaced. The plaintiffs pointed out that in an instruction manual

one of the defendants specifically warned respirator users that the air-purifying elements

had to be replaced in a safe area with uncontaminated, breathable air.

The defendants moved for summary judgment. They pointed out that they did not

manufacture the products containing the asbestos to which Mr. Macias was exposed and

argued that as a matter of law under Simonetta and Braaten they owed no duty to warn

Mr. Macias about the dangers associated with asbestos in another company’s product.

The trial court denied the motion, finding Simonetta and Braaten distinguishable.

The manufacturers sought interlocutory discretionary review, which the Court of

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Appeals granted. The Court of Appeals agreed with the manufacturers that our decisions

in Simonetta and Braaten foreclose the plaintiffs’ failure to warn claims and reversed the

trial court’s denial of summary judgment. The Court of Appeals determined that because

the defendant manufacturers were not in the chain of distribution of the asbestos-

containing products that were the source of the asbestos to which Mr. Macias was

exposed, they had no duty to warn of the hazards of exposure to asbestos. Macias v.

Mine Safety Appliances Co., 158 Wn. App. 931, 244 P.3d 978 (2010). Mr. Macias

sought discretionary review of the Court of Appeals’ opinion, which we granted.

ANALYSIS

A trial court’s denial of summary judgment is reviewed de novo, with the appellate

court engaging in the same inquiry as the trial court. Sheikh v. Choe, 156 Wn.2d 441,

447, 128 P.3d 574 (2006); Tiffany Family Trust Corp. v. City of Kent, 155 Wn.2d 225,

230, 119 P.3d 325 (2005). Summary judgment is appropriate if “there is no genuine issue

as to any material fact” and “the moving party is entitled to judgment as a matter of law.”

CR 56(c).

The plaintiffs asserted failure-to-warn common law product liability and

negligence claims and a failure to warn claim under the Washington product liability act

(WPLA or Act), chapter 7.72 RCW. The Court of Appeals addressed each of these

causes of action in its opinion.

However, Mr. Macias worked as a tool keeper from 1978 to 2004. The WPLA

governs all product liability claims arising on or after July 26, 1981. RCW 4.22.920(1).

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2 The record indicates that Macias maintained and cleaned respirators manufactured by the Mine Safety Appliances Company and North America Safety Products USA only after June 1981. The WPLA clearly governs the claims against these defendants. With respect to American Optical Corporation, the WPLA applies, as explained, because substantially all of Mr. Macias’s exposure to asbestos occurred after the effective date of the Act.

In a case where “substantially all” of the injury-producing events exposing a shipyard

worker to asbestos occurred prior to the WPLA’s effective date, the Court of Appeals

held that the product liability claim did not “arise” after the effective date. Koker v.

Armstrong Cork, Inc., 60 Wn. App. 466, 472, 804 P.2d 659 (1991). The same rule was

applied in Krivanek v. Fibreboard Corp., 72 Wn. App. 632, 865 P.2d 527 (1993), where

substantially all of plaintiff’s exposure to asbestos occurred prior to the WPLA’s

adoption, but he was diagnosed with the injury—mesothelioma—after its adoption. The

court held that the WPLA did not apply because the harm resulted from exposure and

substantially all of the injury-producing events occurred before the effective date of the

Act. Id. at 635; see also Viereck v. Fibreboard Corp., 81 Wn. App. 579, 584-85, 915

P.2d 581 (1996) (because “substantially all the events producing” mesothelioma from

asbestos exposure occurred before 1981, the WPLA was not applicable). Likewise, in

Braaten, we noted that the exposure to asbestos products “substantially occurred before

the enactment” of the WPLA. Braaten, 165 Wn.2d at 383 n.4. We therefore decided the

case under common law product liability and negligence law.

Here, in contrast, the exposure to asbestos substantially occurred after the effective

date of the WPLA. As noted, Mr. Macias was allegedly exposed to asbestos from 1978

to 2004.2 In accord with Koker, Viereck, and Braaten, we hold that when substantially all

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of the exposure to injury-causing asbestos occurs on and after July 26, 1981, the WPLA

applies.

The WPLA is the exclusive remedy for product liability claims. Potter v. Wash.

State Patrol, 165 Wn.2d 67, 87, 196 P.3d 691 (2008). It supplants all common law

claims or actions based on harm caused by a product. Wash. State Physicians Ins. Exch.

& Ass’n v. Fisons Corp., 122 Wn.2d 299, 323, 858 P.2d 1054 (1993); Wash. Water

Power Co. v. Graybar Elec. Co., 112 Wn.2d 847, 853, 774 P.2d 1199, 779 P.2d 697

(1989). Insofar as a negligence claim is product-based, the negligence theory is

subsumed under the WPLA product liability claim. Hue v. Farmboy Spray Co., Inc., 127

Wn.2d 67, 87, 896 P.2d 682 (1995); Wash. State Physicians Ins. Exch. & Ass’n, 122

Wn.2d at 323; Wash. Water Power, 112 Wn.2d at 853. Thus, the only claim before us is

a claim under the WPLA.

However, the Act provides that “[t]he previously existing applicable law of this

state on product liability is modified only to the extent set forth in” the Act. RCW

7.72.020(1). Moreover, with respect to failure to warn claims in particular, we have

concluded that the legislature intended that the Act’s provisions themselves carry forward

principles that we previously recognized under the common law.

Specifically, RCW 7.72.030 governs claims that a product manufacturer is liable

in that the product is not reasonably safe because the manufacturer failed to provide

adequate warnings or instructions. Strict liability principles apply to both defective

design and failure to warn cases. RCW 7.72.030(1), (2); see Falk v. Keene Corp., 113

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Wn.2d 645, 782 P.2d 974 (1989) (design defects); Ayers ex rel. Ayers v. Johnson &

Johnson Baby Prods. Co., 117 Wn.2d 747, 762-63, 818 P.2d 1337 (1991) (failure to

warn). These are the strict liability principles that were defined by this court under the

common law prior to the WPLA. Falk, 113 Wn.2d at 650-54; see Couch v. Mine Safety

Appliances Co., 107 Wn.2d 232, 728 P.2d 585 (1986); Seattle-First Nat’l Bank v. Tabert,

86 Wn.2d 145, 542 P.2d 774 (1975). Foreseeability is not an element of the cause of

action. Ayers, 117 Wn.2d at 760-62.

Accordingly, although Simonetta and Braaten were not decided under the WPLA,

they are still relevant to the extent they reflect the same common law principles that

remain applicable under the WPLA and are reflected in the strict liability-based

provisions of the Act.

The only issue before us is whether as a matter of law the manufacturers are

entitled to summary judgment on the basis that they had no duty to warn of the danger of

exposure to asbestos when their respirators were cleaned and maintained for reuse

because these manufacturers were not in the chain of distribution of the asbestos-

containing products themselves. The trial court held they are not entitled to summary

judgment on this basis. The manufacturers contend, however, and the Court of Appeals

agreed, that under Simonetta and Braaten the manufacturers cannot be found liable when

the respirators as manufactured did not themselves contain asbestos, i.e., they maintain

that any injury was actually due to the asbestos-containing products manufactured by

others.

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In Simonetta and Braaten we held that, in general, to find strict liability in a

product liability case, the manufacturer must be in the chain of distribution. This is a rule

that had long been acknowledged in this state under the common law. Upon adoption of

the Restatement (Second) of Torts § 402A (1965) in Ulmer v. Ford Motor Co., 75 Wn.2d

522, 531–32, 452 P.2d 729 (1969), this court recognized that the section applies to “those

in the chain of distribution,” i.e., a “manufacturer, . . . dealer or distributor” of the

product. Seattle–First Nat’l Bank, 86 Wn.2d at 148 (emphasis omitted); see also Zamora

v. Mobil Corp., 104 Wn.2d 199, 206-07, 704 P.2d 584 (1985).

Nothing in the WPLA modifies the rule that in general a manufacturer must be in

the chain of distribution for strict product liability and thus the rule continues in force. It

is, however, a general rule, as we expressly explained in Braaten. We first noted that

[o]ur decision in Simonetta is in accord with the majority rule nationwide: a “manufacturer's duty to warn is restricted to warnings based on the characteristics of the manufacturer's own products”; “[t]he law generallydoes not require a manufacturer to study and analyze the products of others and warn users of the risks of those products.” 3 American Law of Products Liability 3d § 32:9 (John D. Hodson & Richard E. Kay eds. 2004); 63A Am. Jur. 2d Products Liability § 1127 (1997).

Braaten, 165 Wn.2d at 385 (emphasis added). However, we went on to explain that this

“general rule does not apply to a manufacturer who incorporates a defective component

into its finished product,” noting that this is sometimes called assembler liability. Id. at

n.7. We explained that the justification for assembler’s liability “is that the assembler

derives an economic benefit from the sale of the product incorporating the defective

component and has the ability to test and inspect the component when it is within the

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assembler’s possession, and by including the component in its finished product represents

to the consumer and ultimate user that the component is safe.” Id. Assembler liability is

not implicated here because the respirator manufacturers did not incorporate defective

asbestos components into their finished products, i.e., they did not assemble any asbestos

products into the respirators during manufacture.

We also noted in Braaten that there is another exception to the general rule: “In

addition, there are some cases where the combination of two sound products creates a

dangerous condition, and both manufacturers have a duty to warn.” Id. The plaintiffs

have argued this exception in the alternative; however, it is not implicated, either. This

second exception applies where the combination of two sound products creates a

dangerous condition and both manufacturers have a duty to warn. 3 American Law of

Products Liability 3d, supra, § 32:9; see Rastelli v. Goodyear Tire & Rubber Co., 79

N.Y.2d 289, 298, 591 N.E.2d 222 (1992).

As an example, in Teagle v. Fischer & Porter Co., 89 Wn.2d 149, 155, 570 P.2d

438 (1977), the defendant manufacturer produced a flowrater for measuring liquids. The

plaintiff’s employer purchased a flowrater rated at 440 p.s.i. for measuring liquids in the

production of liquid fertilizers. Although the manufacturer knew when it sold the device

that protective measures were needed for pressures above 50 p.s.i., it did not warn of the

hazard of using the flowrater at higher pressures. In addition, although the manufacturer

recommended to its distributors that Buna O-rings should be used when measuring

ammonia, it did not warn that use of other O-rings with ammonia entailed danger of the O-

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ring hardening and disintegrating within a short time. Anhydrous ammonia was running

through the flowrater in which a Viton O-ring had been installed at 175 p.s.i. when it

exploded, injuring the plaintiff.

Our principal holding was that in terms of the reasonable expectations of the

ordinary consumer (a test the court concluded applied in a failure to warn common law

strict liability case as it did in a design defect case), a reasonable person would conclude

that the unguarded flowrater was not reasonably safe when sold without a warning.

We also noted, however, that although the manufacturer knew that Viton O-rings

were incompatible with ammonia, it did not warn of the danger. “The lack of this

warning, by itself, would render the flowrater unsafe.” Teagle, 89 Wn.2d at 156. This

part of the analysis demonstrates the second exception. Both the flowrater and the Viton

O-ring were sound products that could be safely used. But when these products were

used in combination, they created a hazard and it was one of which the manufacturer was

aware. Thus, in Teagle, the manufacturer’s product was used in conjunction with another

product, with the two products together creating the hazardous condition.

The same is not true here. The respirators were not used in combination with

asbestos. The respirators’ purpose was to filter contaminants from the air. Asbestos, or

an asbestos-containing product, was not combined with the respirators to filter the air.

Rather, the asbestos itself was filtered from the air.

Although neither of the exceptions is implicated in the present case, it must be

remembered that the general rule stated in Simonetta and Braaten is just this, a general

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rule to which there are exceptions. Further, Simonetta and Braaten did not establish new

law narrowing the class of manufacturers who may have a duty to warn of inherent

dangers in products. Both cases rest on settled principles. They do not establish any

new, absolute rule limiting liability.

But as the plaintiffs point out, the Court of Appeals treated Simonetta and Braaten

as establishing virtually an absolute rule: if the source of the hazardous substance was

not the manufacturers’ own product, no duty can arise. The plaintiffs argued, in

responding to the defendants’ motions for summary judgment, that their claims are

fundamentally different from those in Simonetta and Braaten because here the “focus of

[the] claims is on the respirator itself . . . it failed to include adequate warnings and

instructions regarding the safe use, handling, maintenance, and cleaning of the

respirator.” II CP at 295. Plaintiffs stated that their claims “rest squarely on the

respirator product in and of itself, and specifically on the inadequate warnings and

instructions of the respirator product, without reference to any other manufacturer’s

products.” Id.

We agree with the plaintiffs. In Simonetta and Braaten, the defendants were

manufacturers of an evaporator, pumps, and valves that were installed on Navy ships.

Simonetta, 165 Wn.2d at 346; Braaten, 165 Wn.2d at 381. After these products were

installed they were encased in asbestos insulating materials that the Navy applied to the

equipment on its ships. Simonetta, 165 Wn.2d at 346; Braaten, 165 Wn.2d at 381.

When the defendants’ products were subjected to routine maintenance or replacement

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parts were installed, workers broke through the insulation in order to service the

equipment or replace parts. Simonetta, 165 Wn.2d at 346; Braaten, 165 Wn.2d at 381.

The plaintiffs were exposed to asbestos during such maintenance and developed lung

cancer and mesothelioma. They sued the manufacturers, arguing that the manufacturers

had a duty to warn of the danger of exposure to asbestos that occurred during

maintenance of their products.

Applying the common law, we held that the manufacturers were not in the chain of

distribution of the asbestos insulating products and therefore had no duty to warn of the

danger of exposure to asbestos during servicing, and it makes no difference whether the

manufacturers knew that their products would be used in conjunction with asbestos

insulation. Simonetta, 165 Wn.2d at 352-55 (negligence), 355, 357-58 (strict liability);

Braaten, 165 Wn.2d at 385, 389-90 (strict liability), 390-91 (negligence).

Critically, for present purposes, the products involved in the Simonetta and

Braaten cases did not require that asbestos be used in conjunction with their products, nor

were they specifically designed to be used with asbestos. Nor were those products

designed as equipment that by its very nature would necessarily involve exposure to

asbestos.

Unlike the valves, pumps, and evaporator in Simonetta and Braaten, which only

happened to be insulated by asbestos products because the Navy chose to insulate the

equipment on its ships with asbestos products, the respirators at issue here were

specifically designed to and intended to filter contaminants from the air breathed by the

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wearer, including asbestos, welding fumes, paint fumes, and dust. Indeed, filtering out

such contaminants, including asbestos, is the exact reason that the respirators were used;

removing asbestos and other contaminants was the very function for which the respirators

were intended. They were also designed to be reused in contaminated environments, and

thus the contaminants removed from the air and present in concentrated amounts in the

respirators had to be removed so the respirator could be reused. Integral to reuse, the

respirators had to be safely cleaned of the contaminants from the last use, and prior to this

cleaning, they had to be safely handled.

In short, the very purpose of the respirators would, of necessity, lead to high

concentrations of asbestos (and/or other contaminants) in them, and in order to reuse

them as they were intended to be reused, this asbestos had to be removed.

Viewing the facts and the reasonable inferences from the facts in the plaintiffs’

favor, as we must, the respirator manufacturers manufactured the very products that

posed the risk to Mr. Macias of asbestos exposure. They were clearly in the chain of

distribution of these products—respirators that necessarily and purposefully accumulated

asbestos in them when they functioned exactly as they were planned to function. It does

not matter that the respirator manufacturers were not in the chain of distribution of

products containing asbestos when manufactured.

By comparison, if, as a result of a failure to instruct on how to properly use a

respirator, a wearer of the device was exposed to the very contaminants that the respirator

would have filtered out had the wearer been properly advised on use, there would be no

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3 The manufacturers have argued that the respirators were no different from hammers, tarps, and other tools and equipment used around the shipyards and returned for cleaning. While all of these products might have come into contact with asbestos or other hazardous materials, there is a difference. A respirator that is specifically designed to, and does, filter harmful contaminants from the air will pose a hazard because its very purpose is to trap harmful contaminants; the product itself poses a hazard if it works as intended to prevent exposure to hazardous substances. The other products mentioned by the manufacturers come into contact with hazardous particles because by happenstance they are used around asbestos. They are not specifically designed to prevent exposure to hazardous substances. The respirators come into contact with asbestos because that is what they are intended to do.4 The dissent contends that the present case is indistinguishable from Simonetta and Braaten, asserting that the products in those cases required insulation and the only insulation meeting Navy specifications contained asbestos. But the products in Simonetta and Braaten were not designed for or intended for use with asbestos, but only came into contact with asbestos because that was the purchaser-Navy’s choice to use as shipwide insulation. The respirators in the present case, in contrast, are products specifically designed and intended to filter asbestos and other contaminants. When used exactly as designed and intended, the respirators invariably and necessarily involve

doubt that the respirator manufacturer would be found to be in the chain of distribution of

the allegedly unsafe product. There is no meaningful difference in this case. Cleaning

the respirators was required for their reuse. Whether during actual use or preparation for

reuse, the inherent danger arises because of the nature and use of the respirator itself.3

In summary, this case comes within the general rule that a manufacturer in the

chain of distribution is subject to liability for failure to warn of the hazards associated

with use of its own products. Simonetta and Braaten do not control because unlike in

those cases, where the manufacturers’ products did not, in and of themselves, pose any

inherent danger of exposure to asbestos, here when the products were used exactly as

intended and cleaned for reuse exactly as intended they inherently and invariably posed

the danger of exposure to asbestos. Thus, the manufacturers of the respirators were not

entitled to summary judgment on the issue of whether, under Simonetta and Braaten, they

are proper defendants for purposes of the plaintiffs’ failure to warn claims.4

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exposure to the specific contaminants for which the respirator filters are designed. The products themselves involve risk of asbestos exposure when they are used exactly for the purpose for which they were manufactured and sold. There is no such inherent, necessarily existent risk of exposure in use of products that, at the ultimate choice of the purchaser, are coated with asbestos-containing insulation

The dissent says, though, that just as the manufacturers in Simonetta and Braaten were not liable for harm from asbestos in another manufacturer’s product, the respirator manufacturers should not face liability for asbestos when they did not manufacture the products that were the source of the asbestos. The dissent cites Simonetta, 165 Wn.2d at 347. Dissent at 3. This citation is to a quote from the Court of Appeals’ opinion in the case, not this court’s decision that reversed the Court of Appeals. A second citation is the dissent in Simonetta. Dissent at 3.

The manufacturers argue, however, that the intended purpose of the filters goes to

foreseeability and thus should not lead to a duty in this case because foreseeability is not

an element of a failure to warn claim. See Simonetta, 165 Wn.2d at 349 n.4

(foreseeability of injury does not, in and of itself, create a duty to warn); see also Ayers,

117 Wn.2d at 760-62. But considering foreseeability in the context of determining

whether the product is unsafe without adequate warnings and instructions is a different

matter from considering foreseeability of injury to establish that a duty is owed.

Under the WPLA, a failure to warn claim has a risk-benefit analysis basis, as set

out in RCW 7.72.030:

(1) A product manufacturer is subject to liability to a claimant if the claimant's harm was proximately caused by the negligence of the manufacturer in that the product was not reasonably safe as designed or not reasonably safe because adequate warnings or instructions were not provided.

. . . .(b) A product is not reasonably safe because adequate warnings or

instructions were not provided with the product, if, at the time of manufacture, the likelihood that the product would cause the claimant’s harm or similar harms, and the seriousness of those harms, rendered the warnings or instructions of the manufacturer inadequate and the manufacturer could have provided the warnings or instructions which the claimant alleges would have been adequate.

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At the same time, the WPLA directs that in addition to this risk-utility analysis,

and as was true of our common law prior to the act, “[i]n determining whether a product

was not reasonably safe under this section, the trier of fact shall consider whether the

product was unsafe to an extent beyond that which would be contemplated by the

ordinary consumer.” RCW 7.72.030(3). Thus, a consumer expectations standard is also

a relevant part of the WPLA analysis.

Under the WPLA, foreseeability is not an element of a failure to warn claim.

However, when applying the provisions of the WPLA one must consider the actual use of

the product when deciding whether it is unreasonably unsafe—and this is true when that

use is predictably to occur in the future in specific, foreseeable circumstances. Imagine a

kitchen blender sitting in its packing box or a new table saw with a saw blade attached.

Neither poses much of a hazard simply sitting unused. It is only when the product is put

to use at some point in the future that the hazards inherent in swiftly tuning blades exist.

Or imagine a new gas stove. It will predictably be used with natural gas. The hazard

exists only in the future when the product is fueled by natural gas.

That these products are likely to be used in the future and the predictability of the

future hazards posed during actual use does not involve forbidden considerations of

foreseeability of harm as defining duty. Rather, future use and predictability of hazards

when the product is used as intended involve considerations of whether the product itself

is unreasonably unsafe. In fact, every product will be put to use at some time in the

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future after its manufacture, and at that point the hazards that will predictably be involved

in its use will become manifest.

Here, the respirators are designed to prevent human exposure to hazardous

substances and this means they will be used in an environment where hazardous materials

are or are likely to be present and these materials will be trapped in the filters of the

respirators. The respirators are designed for and consumers use them for preventing

exposure to such hazardous materials, including harmful vapors and asbestos.

In summary, the fact that predictably, or foreseeably, the respirators will be used

to filter asbestos does not involve improper consideration of foreseeability of injury to

impose a duty. Rather, it is a matter of considering whether the product might be

unreasonably unsafe in the absence of adequate warnings and, as is always true in

product liability cases, the use to which the product will be put is always a part of this

determination.

As noted, the risk-benefit analysis under the WPLA includes consideration of

whether the “manufacturer could have provided the warnings or instructions which the

claimant alleges would have been adequate.” RCW 7.72.030(1)(b). This factor includes

the practical question of whether an adequate warning could have been provided. It also

implicates the question of whether the manufacturer was in a position to provide adequate

warnings. Generally speaking, there is no more suitable party to warn of the dangers

inherent in using a safety product safely than the manufacturers who designed the product

and who are best positioned to know how the product works and how it must be safely

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5 Of course, Congress and our state legislature have authority to implement public policy through laws regarding the ability to sue when safety equipment is involved. Whether any such laws exist, along with the possibility of administrative regulations drafted under delegated authority, is not the focus of this interlocutory review of whether the trial court properly denied summary judgment to the manufacturers on the issue of whether Simonetta and Braaten dictate that no duty to warn was owed.

The dissent believes that the safety purpose of respirators weigh against liability in this case. Dissent at 6-7. As stated, the legislature has authority to immunize manufacturers of safety equipment from liability, but they have not implemented such public policy in the WPLA itself. If there is any such policy set out elsewhere by the legislature or Congress, as noted, it is not before us.

used and maintained. Imposing liability on safety product manufacturers can be an

incentive to these manufacturers to provide adequate warnings that are necessary to

protect people from the very hazards their products are designed to protect against. A

false sense of safety can be worse than none in light of injuries that hazardous substances

can cause.5

We reiterate, however, that the only issue we decide is whether Simonetta and

Braaten preclude the plaintiffs’ failure to warn claims as a matter of law. Put a little

differently, the issue here is whether the plaintiffs have correctly identified the

manufacturer of the product that allegedly caused the injury, a requirement in every

product liability case. Lockwood v. AC&S, Inc., 109 Wn.2d 235, 245, 744 P.2d 605

(1987). We recognize that the briefing before us has gone well beyond the issue whether

under Simonetta and Braaten the respirator manufacturers are appropriate defendants for

a cause of action based on failure to warn. For example, there is discussion about

whether a new exception to the general rule that the manufacturer must be in the chain of

distribution should be recognized in the case of safety products. There is also briefing on

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the ultimate question, whether these manufacturers had a duty to warn under the WPLA’s

risk-utility test or its consumer expectations test or both.

We do not address any issue beyond that decided on summary judgment, i.e.,

whether Simonetta and Braaten foreclose the plaintiffs’ failure to warn claims as a matter

of law because the respirator manufacturers did not manufacture the products that were

the source of the asbestos that collected on and in the respirators. Other questions, for

example, whether the danger was so obvious that no warnings were required, may arise,

see Anderson v. Weslo, Inc., 79 Wn. App. 829, 840, 906 P.2d 336 (1995), and we will not

foreclose the parties from pursuing whatever arguments may remain to them on remand.

It is for the trial court to consider in the first instance any additional issues the parties

raise in connection with whether the respirator manufacturers had a duty to warn of

hazards associated with the use and maintenance of the respirators.

In short, Simonetta and Braaten do not control, as explained. There are general

similarities, it is true. All of these cases involve failure-to-warn duties of product

manufacturers and harm resulting from exposure to asbestos. All implicate the general

rule that a manufacturer outside the chain of distribution is generally not liable for failing

to warn of dangers associated with a product. But in significant ways, the cases are

distinguishable. In Simonetta and Braaten, the manufacturers did not manufacture

products that inherently involved the danger of exposure to asbestos. Here, the respirator

manufacturers manufactured products that inherently involved the danger of exposure to

asbestos when the products were used exactly as intended and for the purpose for which

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they were intended.

It is important that Simonetta and Braaten not be overread to result in new rules

for product manufacturers. The Simonetta and Braaten cases were explicitly decided on

the basis of settled tort principles and neither introduced new law. These cases did not

introduce for the first time the notion that a defendant in a product liability case generally

can be liable only if in the chain of distribution. That principle came into our law with

the adoption of section 402A of the Restatement (Second) of Torts, as explained above.

CONCLUSION

The trial court properly denied the manufacturers’ motions for summary judgment.

Simonetta and Braaten do not control this case because the circumstances are entirely

different. Here, the respirator manufacturers’ own products presented the inherent danger

of exposure to asbestos when used as intended, while in Simonetta and Braaten the

manufacturers’ products were equipment used on Navy ships and posed no inherent

danger of exposure to asbestos. It was only when the Navy applied asbestos insulation

products to the equipment that any hazard was created at all, and it was not a hazard

created by the manufacturers nor was it a hazard that necessarily occurred when their

products functioned as intended.

The chain-of-distribution requirement has long been a part of this state’s product

liability law. Further, the requirement is not an absolute rule. This court has previously

applied one of two generally recognized exceptions to the chain-of-distribution rule, i.e.,

when two sound products combine to create an unreasonably unsafe condition. While the

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chain-of-distribution requirement is undoubtedly the general rule, and an important one at

that, it is not absolute.

Simonetta and Braaten did not alter the common law principles, and of course

neither alters the law under the WPLA. In the present case, the holdings of these cases

simply do not apply. Here, the record as it is presented to us supports the plaintiffs’

theory that the respirator manufacturers’ own products, when used as intended, including

cleaning for reuse, were inherently dangerous in the absence of adequate warnings. This,

is, however, the ultimate question that must await further proceedings on remand of this

case.

The Court of Appeals is reversed. The trial court properly denied summary

judgment. This case is remanded for further proceedings.

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AUTHOR:Chief Justice Barbara A. Madsen

WE CONCUR:

Justice Debra L. Stephens

Justice Tom Chambers Justice Charles K. Wiggins

Justice Mary E. Fairhurst